Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

In its previous observation, the Committee had noted that the ILO technical assistance mission of April 2009, which had been requested by the Conference Committee on the Application of Standards, had given rise to a Tripartite Memorandum of Understanding by which the social partners and the Government had agreed to participate in a tripartite symposium to be organized by the ILO to discuss the challenges faced by the country in the application of the Convention, to review the experiences of other member States and to formulate proposals on the measures necessary to give effect to the Committee’s comments. The Committee welcomes the fact that a Tripartite Workshop on Social Dialogue, Freedom of Association and Development took place on 26 April 2010, with ILO participation, to address a number of divergences between the legislation, the practice and the Convention. The Committee hopes that the holding of this seminar will constitute an important first step in addressing this long-standing matter.

In its previous observation, the Committee had noted the comments made by the International Trade Union Confederation (ITUC) on the application of the Convention, in particular the allegations that: (1) the provisions of the 2002 Special Economic Zones Law exempt investment companies newly established in the zones from the legal provisions concerning the organization of labour, and anti-union acts were reported, including pressure on members to leave unions; (2) most workers in the Tenth of Ramadan City Zone were forced to sign letters of resignation before beginning employment so that they could be fired at the employers’ convenience; and (3) trade unionists were harassed by the authorities, including in connection with the promotion of union membership, and administrative penalties were imposed on a number of them. The Committee takes note of the Government’s replies to the ITUC comments, stating in particular that: (1) pursuant to section 28 of the 2002 Special Economic Zones Act No. 83, the provisions of the Labour Code constitute a minimum limit to what may be agreed upon in individual and collective labour contracts and the Act does not contain any provisions exempting any enterprise subject to its provisions from the laws relating to the organization of labour, such as Labour Code No. 12 of 2003 or Trade Unions Act No. 35 of 1976; and the Ministry of Manpower and Migration investigates any complaint received from any worker concerning pressure to leave the trade union to which they belong and spares no effort to protect the workers’ interests and safeguard their rights; (2) section 119 of the Labour Code makes the practice alleged by the ITUC impossible by providing that “the worker’s resignation does not count unless it is submitted in writing; the worker who has resigned may withdraw his resignation within a week of the date on which the employer notifies the worker of his acceptance of the resignation in which case the resignation is deemed non-existent”, moreover, the Government has engaged in awareness raising on these provisions among all workers covered by the Labour Code, especially in labour-intensive enterprises; and (3) the Labour Code and the Trade Unions Act guarantee the protection of trade union members or workers’ representatives from any practices against them and refer the matter to the judicial authority.

Article 4 of the Convention. In its previous observation, the Committee had recalled that it has been making comments for a number of years on various provisions of the Labour Code, as follows:

–      as regards section 154 of the Labour Code, under which any clause of a collective agreement contrary to the law on public order or general ethics shall be null and void, the Committee had asked the Government to provide information on the scope of this section and the impact the broad wording of this section might have on the application of the principle of voluntary negotiation, it had also requested the Government to indicate the specific cases in which use had been made in practice of section 154;

–      as regards sections 148 and 153 of the Labour Code, the Committee had asked the Government to take the necessary steps to repeal these sections, as they enable higher level organizations to interfere in the negotiation process conducted by lower level organizations. The Committee had noted the Government’s indications that the purpose of the participation of higher level organizations in the negotiation process of a union is to support and strengthen the position of smaller unions, and that the application of the Convention is ensured by concluding agreements which apply to all workers belonging to a higher level organization. The Committee recalls that the interference by higher level organizations in the bargaining process undertaken by lower level organizations is incompatible with the autonomy which must be enjoyed by bargaining parties which, as such, must have the right to free and voluntary negotiation of collective agreements;

–      as regards sections 179 and 187, in conjunction with sections 156 and 163 of the Labour Code, the Committee had asked the Government to take the necessary steps to amend the Labour Code so that the parties could have recourse to arbitration only by mutual agreement.

The Committee had accordingly requested the Government to take the necessary measures to repeal sections 148 and 153 of the Labour Code and to amend sections 179 and 187, in conjunction with sections 156 and 163 of the Labour Code, so that compulsory arbitration can only be possible for public servants engaged in the administration of the State or in essential services in the strict sense of the term.

Finally, the Committee notes that the Government indicates in its report, that Order No. 69 of 2010 has been issued by the Minister of Manpower and Migration on the establishment of a preparatory technical committee composed of legal experts to review Labour Code No. 12 of 2003 and Trade Unions Act No. 35 of 1976, as amended to date, to ensure their conformity with international labour standards. The Committee further notes that, pursuant to Order No. 69, the legal experts shall present a report by the end of the year, which will then be submitted for discussion to a tripartite meeting in order to agree on the final versions of the two bills. The Committee requests the Government to take the necessary measures to ensure that during the review process, due account will be taken of the Committee’s comments on the abovementioned issues. As requested by the Conference Committee, the Committee trusts that the proposed amendments will be provided to the ILO in the near future for advice on their conformity with the Convention.

The Committee requests the Government to provide information in its next report on the progress made on these long-standing matters.